November 8, 2021
Yesterday, the Occupational Safety and Health Administration (OSHA) released long-awaited details of its Emergency Temporary Standard requiring all large businesses to mandate COVID-19 vaccinations or submit their employees to masking and weekly testing. The rule – the most controversial step of President Biden’s three-pronged strategy to increase vaccination coverage announced in September – goes into effect immediately. Thousands of employers have already stepped forward to implement COVID-19 vaccination requirements within their own businesses. But OSHA’s new rule has the power to dramatically increase rates of vaccination in holdouts.
COVID-19 has already killed more than 750,000 Americas – a grim milestone. While America has several FDA authorized vaccines that have been shown to be highly safe and effective, especially in protecting against severe disease and death from COVID-19, a significant portion of the population remains unvaccinated and therefore vulnerable. COVID-19 has been a pandemic principally of the unvaccinated in the U.S. Now, OSHA conservatively estimates that its new rule will prevent over 6,500 deaths and 250,000 hospitalizations.
Who does it apply to?
OSHA’s rule applies to private entities with 100 or more employees. It also covers state- and local-government entities in the 28 states and territories with OSHA-approved state plans which are required to create standards “at least as effective” as those implemented by the federal rule. These public sector workers will be equally protected under the rule through compliant state plans. In total, the rule is estimated to cover at least 84 million American workers.
The rule does not apply to federal agencies or if the entity’s employees are otherwise covered under the Administration’s Guidance for Federal Contractors and Subcontractors or the Healthcare Emergency Temporary Standard while it remains in effect. For entities captured by the rule, vaccination requirements do not apply to employees who do not report to a workplace where others are present, those who work from home, or those who work exclusively outdoors. Employees who work remotely, do not come into contact with other workers, or who work outdoors pose few, if any, risks. There is no reason to subject these employees to workplace vaccination rules.
What is the deadline?
Companies subject to the rule must ensure that their staff are fully vaccinated against COVID-19 by January 4, 2022, or subject those who remain unvaccinated by this date to weekly testing. Unvaccinated employees are required not only to test but also to wear face coverings in all indoor workplace settings. The balance of the rule’s requirements goes into effect on December 5, 2021, including masks for unvaccinated employees, and requirements to establish a vaccination policy and a system for employees’ proof of vaccination. OSHA gave businesses a longer implementation period due to supply chain concerns and the upcoming holiday season.
Will workers get paid time off to get the vaccine?
Yes. Employers subject to the rule must pay workers at their regular rate for the time it takes them to receive the vaccine – up to four hours – and provide adequate sick leave for time spent in recovery from any side effects following each primary dose of the vaccine. A full dose regimen requires either two doses of either of the two FDA authorized mRNA vaccines (Pfizer or Moderna) or one Johnson & Johnson dose.
Who pays for testing?
OSHA’s rule does not require employers to pay for testing. We believe that employers should bear the costs of testing since they have the duty to maintain safe working conditions. Shifting the costs to employees may also have perverse and unequitable outcomes for poor and minority unvaccinated workers. Employers subject to the rule could, as part of their policies, pay for testing. However, OSHA does not require them to cover the cost, and many will not. The financial burden to pay for regular testing, along with the time constraints, should nudge hesitant employees towards vaccination. That will increase vaccination coverage in the workplace.
Must employers grant religious and medical exemptions?
Yes. Employers who choose to implement a mandatory vaccination policy with no testing option must grant employees reasonable medical and religious exemptions. The Americans with Disabilities Act requires employers to grant reasonable accommodations which includes medical reasons for not getting vaccinated. Medical exemptions, however, will be rare, because COVID-19 vaccines are safe for most individuals.
Title VII of the Civil Rights Act prohibits employment discrimination based on religion (as well as race, gender, or national origin), which the Equal Employment Opportunity Commission determined includes offering a religious exemption. Religious exemptions should also be relatively rare as religious traditions are pro-life and do not have doctrines against vaccination. These accommodations exist independently of, and are not enforced by, OSHA. OSHA’s rule requires all unvaccinated employees, including those with medical or religious exemptions, to submit to weekly testing and wear a face covering in the workplace, except in the very limited case where a legal accommodation is also granted for testing.
How will it be enforced?
Employers are largely responsible for enforcing their own policies through employee training and standard workplace rules and disciplinary measures. Employers subject to the rule must develop a system of determining the vaccination status of their employees using acceptable proof of vaccination and maintain records of their workforce’s vaccination status. OSHA has stated that it expects most employers to comply, and big businesses agree. However, those that do not could face severe penalties. Companies that fail to comply could face penalties of nearly $14,000 per violation, with a scale that is set to increase with employers that stack up several violations. OSHA can cite employers for each protective requirement they fail to implement “without the need to wait for employee infection or death” to prove that the workplace was hazardous. OSHA will oversee administration of the rule as any other workplace safety standard and will target companies the subject of complaints. The agency has a complaints mechanism through which it receives reports of rule violations. Workers can lodge a whistleblower complaint via the agency’s website. While the agency is short staffed, it is likely to make enforcement of the rule a high priority and its complaints mechanism enables it to take a targeted approach.
What else must employers do?
Employers subject to the rule must require their employees to notify the business when they receive a positive COVID-19 test. The employer must immediately remove that person from the workplace, regardless of their vaccination status.
Businesses must also provide employees with information about:
- the requirements of the OSHA rule
- workplace policies and procedures designed to implement the rule
- vaccine efficacy, safety, and the benefits of vaccination, using CDC-approved information
- protections against retaliation and discrimination, including whistleblower protections for those who file a complaint against the company
- criminal penalties for knowingly supplying false information
Does it require other risk mitigation measures?
Employers subject to the rule must ensure their unvaccinated workers are masked – a requirement which takes effect ahead of the vaccination deadline. OSHA’s rule stops short of requiring other measures that are effective against COVID-19 transmission including ventilation and distancing. However, the rule only establishes minimum requirements and is not intended to limit employers from requiring any other risk mitigation measures they deem appropriate for their business, including those the subject of collectively bargained agreements.
Is it legal?
Challenges to the rule are inevitable. Many Republican officials have already vowed to sue the Biden administration over its vaccine mandates, claiming that they are an overreach and unconstitutional. But OSHA is on solid legal ground in issuing this emergency order. President Biden is not acting unilaterally but through specific congressional authorization pursuant to the Occupational Safety and Health Act 1970 (OSH Act). That law was enacted to empower the Department of Labor to set national uniform workplace safety standards, including emergency temporary standards for specific hazards. The risk of contracting SARS-CoV-2 in the workplace is real and the conditions are urgent due to the proliferation of the highly contagious Delta variant. Both the Department of Justice and the Equal Employment Opportunity Commission have advised that businesses may lawfully require COVID-19 vaccination for their employees and OSHA’s rule simply builds on this guidance.
In outlining the rule, OSHA made its legal case clear. The agency’s authority to regulate workplace exposure to biological hazards is well-established, and the agency has identified hazards such as bloodborne pathogens and now SARS-CoV-2 as “toxic materials or harmful physical agents” under the act. The risk to workers from a potentially lethal infectious disease is at least as great as a workplace injury. OSHA found that unvaccinated workers face grave danger from exposure to COVID-19 in the workplace. This finding is based on evidence of severe health outcomes associated with COVID-19 infection and the prevalence of infections in employee populations. The rule protects unvaccinated workers from this grave danger through evidence-based tools: vaccinations, or vaccinations in combination with regular testing and mask use.
Across the board, lawsuits have been filed objecting to COVID-19 vaccine mandates imposed by states and localities, despite the weight of authority in support of immunization requirements in other contexts, and increasingly in the context of COVID-19. Judges have overwhelmingly upheld these mandates, with limited exceptions. A majority of the highest court in the land also refused to block a COVID-19 vaccine mandate without religious exemptions for Maine health and care workers. The court had already twice refused to hear matters challenging vaccination requirements for school staff.
Lastly, vaccine mandates have been part of the legal fabric of American public health policy for over a century. The Supreme Court has long recognized the constitutional authority of states to mandate vaccinations and parents in every state and D.C. have routinely vaccinated their children against a list of diseases as a condition of their school enrolment. OSHA’s rule should therefore be viewed as simply a continuation of a rich national tradition of the use of mandates to prevent or mitigate against infectious disease.
Will the rule supersede contrary state laws?
Yes. The rule applies nationally and will supersede contrary state laws under the Constitution’s Supremacy Clause. The rule expressly states that intends to pre-empt and invalidate state laws that limit or ban COVID-19 vaccine, face covering, or testing mandates to the extent that those laws apply to entities captured by the rule. Montana enacted a law prohibiting any “discrimination” based on a person’s immunization status and banning proof of vaccination in employment settings, among others, which has been challenged on grounds it violates the state’s constitutional guarantees of the right to “a clean and healthful environment.” Similarly, Texas Governor Greg Abbott issued an executive order banning businesses from imposing COVID-19 vaccine mandates. Employers subject to both edicts should be confident that the federal OSHA rule trumps anti-mandate state laws and should make every effort to comply with the federal rule by the required deadlines.
Moreover, states with OSHA-approved state plans must adopt rules and penalty levels that are at least as effective as the federal rule. Once OSHA promulgates federal standards addressing an issue of workplace health and safety, states are barred from regulating that issue except with OSHA’s approval. Any state plan that attempts to prohibit employers from mandating vaccinations or provides for more lenient options would be ineffective and federal OSHA could commence proceedings to bring the state plan into alignment with the federal standard. So, while the OSH Act does not expressly apply to state- and local-government entities, workers for these entities in the 28 states and territories with OSHA-approved state plans are required by the act to be protected by vaccination policies at least as effective as those required by the federal rule.
Will it hurt the workforce?
Despite concerns of some including the National Retail Federation trade group of a large employee exodus due to mandate, the data show that employers subject to OSHA’s rule need not be too concerned about a large workforce contraction. Despite widespread reports of employee dissension, only 5% of unvaccinated adults (1% of all adults) say they left a job because their employer mandated vaccination, according to a recent survey by the Kaiser Family Foundation. Further, the flexibility of OSHA’s rule in allowing for a regular testing option should mitigate against large departures of those who choose to remain unvaccinated.
The bottom line?
Vaccination requirements are legally robust, and they work. Evidence of the latter has already emerged. Before its company deadline for employees to be vaccinated, United Airlines announced that 97% of its employees were fully vaccinated against COVID-19 with the balance having received medical or religious exemptions. Very few resigned. Similarly, Tyson Foods announced that over 96% of its workforce was vaccinated as of its November deadline, compared with less than half prior to the issuance of its mandate.
OSHA’s rule is temporary by design. It will remain in place until such time that OSHA determines that the grave danger from the virus no longer exists for the relevant workforce, or the evidence points to a change in measures to address the danger. OSHA will continue to monitor trends in workplace COVID-19 infections and deaths. But until that time, OSHA’s new rule is the kind of bold move required to keep workers safe and businesses open, and ultimately turn a page on this pandemic.
Alexandra Finch is a fellow at the O’Neill Institute for National and Global Health Law at Georgetown University.